Two resolutions before the North Dakota Legislature requesting conventions to amend the U.S. Constitution are efforts to enhance state’s rights and curb federal overreach, according to the resolution’s sponsors.
The resolutions on their own have no effect and don’t trigger any convention of the states until 34 states have requested a convention on the same topic, according to David Super, a professor of law at Georgetown University who works with the Center on Budget and Policy Priority in Washington, D.C.
Senate Concurrent Resolution 4006 calls for a convention to approve a “countermand amendment.”
Sen. Oley Larsen, R-Minor, the resolution’s sponsor, said the planned amendment would allow a group of states to take action asking the federal government to rescind a law or regulation.
“It creates an 18-month window to get the issues addressed and resolved,” Larsen said.
A draft version of the amendment says that if 50 percent of the state legislatures vote against a federal law or regulation within 18 months, the law or regulation is void.
“A single state can’t take action,” Larsen said.
Larsen said so far seven states have passed legislation requesting a convention to draft a countermand amendment.
“It’s starting to build steam,” he said.
House Concurrent Resolution 3006 lists federal debt and improper and imprudent spending by the U.S. government as problems and proposes a convention of the states “for the purpose of restraining these and related abuses of power.”
HCR3006 passed the House on a 69-18 vote. It is sponsored by Rep. Jim Kasper, R-Fargo, and co-sponsored by Rep. Craig Headland, R-Montpelier, and others.
Headland said the resolution and the constitutional amendment it proposes are an attempt to regain control of the federal government.
“Return the power granted to the states back to the states,” he said.
Vague convention rules
The resolutions call for a convention of the states under the authority of Article V of the U.S. Constitution. Article V calls for a convention to propose amendments when either two-thirds of the U.S. House and U.S. Senate or two-thirds of the states make a request. Any amendment generated by the convention would need to be ratified by three-fourths of the states before becoming part of the Constitution.
The article does not set any rules or guidelines for how the convention should operate, Super said.
“Article V is very vague and short and doesn’t give any details,” Super said. “A convention could open up our most basic document. There is nothing in Article V to limit discussion to a single topic or list of topics.”
Super said the lack of guidelines in Article V would likely mean the convention would be forced to make its own rules. This is what happened in the first and only constitutional convention in U.S. history in 1787.
The rules in question would include the basics such as whether each state gets one vote or if the voting is based on state populations.
“It’s hard to imagine how it’s resolved,” Super said. “You need a voting system to resolve the question of what the voting system should be.”
Headland said the resolutions can be worded to limit the topics that any convention could address.
“A runaway convention,” he said. “That is what the opposition uses to oppose this.”
Joel Griffith, a director for the Center for State Fiscal Reform in Washington, D.C., said a runaway convention could completely restructure American government. He said a runaway convention could be avoided with a compact — an agreement between the states requesting the convention — defining the methods to be used during the convention and its topics.
The North Dakota Legislature passed, and Gov. Jack Dalrymple signed, a bill during the 2015 legislative session to participate in the Compact for America. This compact defines how a convention would operate and limits its agenda to a balanced budget amendment to the U.S. Constitution. Only Alaska, Georgia, Mississippi and North Dakota have approved such a resolution at this time.
“The compact approach defines the rules in advance,” Griffith said. “It prohibits any state from participating other than on agenda items approved in the compact.”
Griffith said the Compact for America was carefully worded to cover any possibilities and withstand legal challenges. The 2015 North Dakota law included 10 pages of specifications and restrictions on the convention. Griffith said the compact, and the balanced budget amendment it proposes, are a safe way to deal with the growing problem of national debt.
“I encourage everyone to try to get a sense of the danger a $20 trillion debt has for this country,” he said.
Super said he does not believe an agreement between the states would be binding on an Article V convention and that any convention to amend the Constitution has risks.
“Any effort to call an Article V convention has to be considered a convention to review the entire Constitution,” he said. “The North Dakota resolution includes some rules, but North Dakota can’t dictate convention rules.”